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The Unaccountables

One December night in 2003, Adel L. Nakhla, a chunky, broad-shouldered Egyptian American interpreter with a soft, almost feminine voice, went to Cell 43 in Abu Ghraib's Tier 1A. He was accompanied by Army Specialist Charles A. Graner Jr., a reservist convicted in January 2005 of abusing prisoners at Abu Ghraib, to the cell where a former Baath Party member, A.A. (his attorney asked that his name not be used for safety reasons) was lying on a mattress. A.A. had been classified as a “high-value target” because of suspected terrorist activities.

Officials had departed from custom when A.A. arrived at Abu Ghraib the month before and had not issued him an identification number. He was placed under the supervision of the OGA -- an acronym that stands for Other Government Agency but in practice means the CIA. Officially, A.A. was a “ghost detainee”; he did not exist.

“Get up, you criminal. You're pretending to be asleep,” A.A. later recalled the man he recognized as Nakhla saying. Then he asked A.A. to walk backwards toward him.

I spoke with A.A. in March during a trip to Amman, Jordan, arranged for him by his lawyer, Susan L. Burke, a Philadelphia attorney representing former detainees like A.A. In June 2004, she jointly filed a lawsuit with the Center for Constitutional Rights against Nakhla's former employer, Titan Corp., and another military contractor, CACI International Inc., which sent 60 employees to Iraq to work as interrogators between August 2003 and August 2005. A.A. told me he had been arrested on November 19, 2003, less than three weeks after going to a dinner party in Baghdad. It had been nearly eight months since the fall of Saddam Hussein, and troops had cordoned off an area of the city, known as the Green Zone, where A.A. had once worked as deputy to the general manager of the Military Industrialization Commission.

A dark-haired man with droopy eyes, A.A., 40, is funny, articulate, and arrogant. He also holds disturbing views. He was -- and still is -- openly supportive of Saddam Hussein, describing him over a cup of tea with me at the Regency Palace Hotel in Amman as an “idol for the Iraqi people.” The night of the dinner party, A.A. recalled, he'd complained long and loud about the presence of American troops in Baghdad. One of the guests, the host later told A.A., was an informant for the U.S. military. A.A. said he had no ties to the insurgency and knew nothing about the attacks on American forces. Still, he was arrested and taken to Abu Ghraib.

That December evening in Abu Ghraib, A.A. said he encountered Nakhla, who had been sent to Iraq by Titan, which held a $369 million contract to supply civilian translators for the Army. (Titan, owned by L-3 Communications, recently extended the contract -- now worth $1.05 billion, according to Joe Walker, spokesman for the Army's Intelligence and Security Command.) A.A. says he recognizes Nakhla in the now-infamous Abu Ghraib photographs. That night, Nakhla told him to step on a platform in the doorway of the cell. He climbed up. His hands were shackled behind his back.

“You son of a bitch,” Nakhla said, as A.A. recalled. “You move your legs from the surface.” He took his feet off the platform and stepped into the air, hanging now by the arms that were handcuffed behind his back. This is known as a “Palestinian hanging,” a form of torture reportedly once used by Israeli troops. A.A.'s friend, Manadel al-Jamadi, died in the same position in November 2003; a photograph of al-Jamadi, dead and packed in ice, was shown, along with other Abu Ghraib photos, on60 Minutes II on April 28, 2004.

As A.A. sat at a table at the hotel, he waved his hands to show how his feet moved when he dangled in the air. “I tried to put my hands out … and to put my feet back on the bar, but Abu Hamid [as Nakhla was known by the prisoners] said, ‘Don't,'” he recalled. “He was right behind me. I heard whistling in my head. I cried out to Abu Hamid for help. I told him, ‘Abu Hamid, I am dying. Abu Hamid, I am going to die.' I hoped he would influence [Graner] for my sake because he is an Arab. But he was even worse than Graner.

“When Abu Hamid saw that I was going to put my feet back on the bar, he became very angry,” he says. “He cursed. I started to sweat, and I lost consciousness. When I woke up, I was lying on the floor. I don't know who untied me or who put me on the floor. … This was the last I saw of Abu Hamid and Graner.”

* * *

On May 7, 2004, shortly after the Abu Ghraib scandal broke, Defense Secretary Donald H. Rumsfeld and Acting Secretary of the Army Les Brownlee appeared before the Senate Armed Services Committee. Brownlee said they would make sure individuals “responsible for the shameful and illegal acts of abuse are held accountable.” Eighty-nine members of the U.S. military have been prosecuted for detainee-related misconduct since the start of Operation Enduring Freedom. And recent reports of rape, murder, and other crimes in Haditha, Mahmudiya, and other Iraqi towns indicate that some soldiers responsible for such acts will be held accountable.

Not so for independent contractors like Nakhla, who has been implicated in charges of rape, torture, and assault during his one-year stint in Iraq. He is one of 25,000 civilian contractors who have worked for the military in Iraq since hostilities began. Currently, more than 15 contractors are under Justice Department investigations. While that number may seem small set against 25,000, many observers say instances of contractor abuse are vastly underreported by victims -- and underinvestigated by the military. Only one civilian, David A. Passaro, a CIA contract interrogator, has been indicted -- for assault on detainee Abdul Wali, who died in June 2003. Passaro's trial opened on August 7.

These cases are moving forward at a snail's pace. That's partly because it's not clear which laws can be applied to a nonmilitary person who commits a crime on foreign soil. In legal terms, this means untangling a web of justice that no one -- not the administration, military, the public, and certainly not the contractors with powerful government ties -- seems intent on untangling. In practical terms, it may mean that American employees, working alongside the U.S. military and on their payroll, committed crimes in Iraq for which they will never be punished.

Contracts with companies that provide civilian support to the military are awarded through a formal process. First, notifications of requests for proposals appear in publications like Defense Daily and government officers put the word out among colleagues. It's a small world. Many contractors spend years in the military before joining the private sector. Titan Executive Vice President of Operations Lawrence J. Delaney is a former assistant secretary of the Air Force for acquisition, for example, and three other Titan executives have served as officers or in high-ranking military positions. Contractors present a formal bid, and government chooses the best offer.

The military says that relying on temporary workers rather than enlisted troops for support services allows for a more cost-effective military. Over the years, the number of private contractors has increased steadily. The United States deployed roughly one contractor for every 50 military personnel during the 1991 Gulf War. In Bosnia, Herzegovina, and Kosovo, the ratio was about 1 to 10. That is the ratio in Iraq as well. For years, lawmakers and taxpayer groups have raised questions about the system, but there has never been a concerted effort to overhaul it. Things have bumped along with no major disasters.

With Iraq, however, the competitive nature of the contracting process broke down. “Government contracting officers were under tremendous pressure to meet multiple demands in a tightly compressed time frame,” said Larry Allen, executive vice president of a nonprofit association of government-contract companies, Coalition for Government Procurement, at a September 2004 Senate Democratic Policy Committee hearing. “[Government contracting officers] turned to companies with which they had existing contracts and which had well-established reputations.” It was an ad-hoc approach, say critics, and hardly an efficient method of streamlining wartime expenses.

From there, the race was on for Titan to provide enough translators. And that's where things seem to have gone awry. Titan (as BTG, Inc.) had been supplying linguists to the Army at least since 1999. But suddenly the Army needed more than 4,000 interpreters in Iraq. To meet the higher demand, Titan recruiters paid for newspaper and TV ads in Detroit, San Diego, and other cities looking for Arabic-English speakers who were willing to go to a war zone.

Those weren't easy jobs to fill. Among those hired were former construction workers, computer technicians, security guards, and assembly-line workers. “I saw people who cannot spell Bob. b-o-b,” says Walid Hanna, an Iraq-born executive director of Michigan Community Financial Services in Sterling Heights, Michigan, and a former interpreter in Iraq. “I saw translators who didn't even understand English.” Abdullah Khalil, a former truck driver in Vienna, Virginia, who worked for Titan in 2003, recalls meeting local hires in Iraq. “They would see someone riding a donkey, and they make him a translator,” Khalil says. “The only thing he knows how to do is ride a donkey.”

“They didn't take any caution in who they hired,” says attorney Burke. Many of the interpreters seemed ill-suited for their jobs. In some cases, she says, they ended up treating the detainees in a horrific manner. The complaints in the lawsuit, as Judge James Robertson of Federal District Court in the District of Columbia writes in his June 29 opinion, include “allegations of nearly unspeakable acts of torture and other mistreatment by interpreters and interrogators.”

A lawyer representing CACI, John F. O'Connor, says in a statement posted on the company Web site that the lawsuit tries “to twist and invent facts in an attempt to dictate the United States' policies in Iraq, and to defame and extort financial compensation from CACI.” Titan spokesman Evan Goetz refused to comment about the lawsuit but said the company would “vigorously defend against allegations that Titan committed any wrongdoing.”

Burke says slipshod hiring practices and training contributed to the mistreatment of detainees. After interpreters were hired, they say they didn't get much guidance. Former Titan employee Khalil, for example, says he spent a short time on military bases, learning about “insects, bombings, and ambushes” before going to the Middle East. Nobody, he says, told him how to be an interpreter or how detainees should be treated, or about international law and human rights. In the August 2004 Fay-Jones report on Abu Ghraib, Major General George R. Fay wrote: “The contracting system failed to ensure that properly trained and vetted linguist and interrogator personnel were hired to support operations at Abu Ghraib.”

In addition, Khalil says, some interpreters arrived in Iraq with a bias. Titan recruiters hired individuals “known to be full of hatred and violent animus towards Iraqis in the custody of the United States,” according to Burke's lawsuit. Many interpreters were Kurds, Iraqi Christians, or other members of minorities that had been oppressed in Saddam Hussein's Iraq. “The Kurdish people hate the Baath people,” Khalil explains. “If somebody has a hatred before, and he goes to Iraq and captures Saddam's people and he tries to abuse them -- he asks an Army commander, ‘Should I do yelling on this guy?' If [the commander] gives him an OK, he does it.”

In other cases, interpreters may have taken the initiative to expand their responsibilities. “Maybe it was ultra vires -- that's Latin for ‘too big for your britches,'” says Graner's former attorney, Guy L. Womack. T.A., a former Abu Ghraib prisoner I met in Amman, described an interpreter who seemed to fit that description. (The dates of T.A.'s detention were confirmed by a military spokesman.) T.A. says, “When I asked why I was brought there” the translator -- a Lebanese American employed by Titan -- replied “You're part of the resistance.'” Two months after T.A.'s arrival, the same interpreter appeared with documents showing why he was imprisoned. Two of the pages, however, were blank. “I said, ‘I haven't been accused of anything,'” says T.A., who was 16 at the time. The interpreter snatched the papers, filled them out, and gave them back. He had written down that T.A. was accused of shooting a rocket-propelled grenade at coalition forces.

* * *

At the time of T.A.'s detention in the fall of 2003, American casualties were mounting. Pressure on military commanders to extract information from detainees was intense. Some legal experts think contractors may have been hired to assist with harsh interrogation techniques specifically because they were not subject to the same legal standards as military personnel. In addition, some of these experts think that the decision to use contractors goes right to the top. “It's very, very clear that the Office of the Secretary of Defense thought it would be very advantageous to bring people into the intelligence-gathering process -- a contractor -- who is outside the chain of command,” says Scott Horton, who has served as chairman of the human-rights committee of the City Bar Association in New York. “One of the things they had was a back-door form of communications with the DoD.” Three soldiers who were at Abu Ghraib, says Horton, told him Defense Department officials spoke directly with interrogators through secured telephone lines -- ostensibly to provide “logistical support.” In fact, says Horton, “They were involved in intelligence gathering.”

Specialist Samuel J. Provance III, a systems administrator stationed at Abu Ghraib, says a group of interrogators temporarily took over a room, the Top Secret Controlled Intelligence Facility, in the fall of 2003 with direct linkups to U.S. military bases. “I'd walk in the room and they'd get really quiet,” he says.

At a recent court-martial of an Army dog handler, Sergeant Santos A. Cardona, civilian interrogator Steven J. Pescatori, and an officer, Major Michael Thompson, indicated that Rumsfeld had a keen personal interest in interrogations. “Thompson was frequently told by Pappas' executive assistant that ‘Mr. Donald Rumsfeld and Mr. Paul Wolfowitz' had called and were ‘waiting for reports,'” says Hina Shamsi, a Human Rights First senior counsel who attended the Fort Meade, Maryland, trial. Pescatori, she says, “recalled being told by military intelligence personnel that Secretary Rumsfeld and Wolfowitz received ‘nightly briefings.'”

Attorney Horton's concerns about civilian contractors are based on an unfortunate reality: It is immensely difficult to prosecute contractors for criminal misconduct, including the mistreatment of detainees. As civilians, contractors aren't bound by military law. Contractors accused of a crime in the United States are tried in a criminal court in this country. But if the crime is committed overseas, U.S. courts no longer have jurisdiction, with rare exceptions, so contractors are tried in the country where the offenses occurred. In Iraq, however, they are not prosecuted. Guidelines set up by the 2003 Coalition Provisional Authority, a temporary governing body of Iraq, shielded contractors and troops from being tried in local courts.

Contractors can, theoretically, be held liable under federal laws like the 2000 Military Extraterritorial Jurisdiction Act, according to Charles A. Allen, a deputy general counsel of international affairs in the Defense Department. This law allows prosecutors to go after Americans who have committed crimes on overseas military bases, but it can be used only in certain types of cases. So far, it has been applied just once.

The question of contractor accountability seems to confound even those in charge of the military. At a December 2005 presentation at Johns Hopkins University, Rumsfeld gave a rambling answer, citing U.S. and Iraqi law and the United Nations as governing contractors' “behavior” in Iraq when asked the question by Johns Hopkins graduate student Kate (Turner) Bateman. Five months later, Bush responded to the question (asked again by Bateman) by saying “Help,” before adding that he'd ask Rumsfeld. “I don't mean to be dodging the question,” the president said, “although it's kind of convenient in this case.”

As a result, contractors fall into a legal lacuna. John Sifton, a Human Rights Watch senior researcher who's met with Justice Department officials about civilian contractors under investigation, says he doesn't think much has been done on the cases. “Maybe they're about to indict everybody tomorrow, but I doubt it,” says Sifton. “My feeling is they're just running up the clock and nothing will ever happen.”

“Not one private military contractor has been prosecuted or punished for a crime in Iraq,” writes P.W. Singer in Foreign Affairs (March-April 2005), though more than 25,000 contractors work there. “Either every one of them happens to be a model citizen, or there are serious shortcomings in the legal system that governs them.”

* * *

Today, Nakhla, who emigrated to the United States in 1979, according to a court filing, lives in suburban Maryland with his wife and two daughters. He works as a lab technician at an eyeglasses store in a shopping mall. “He's a very good employee,” says Nicole Bost, a store manager. From 1998 to 1999, Nakhla worked at a business communications company in suburban Virginia. “He was one of the nicest guys who's ever worked here,” says Don Eckrod, a company vice president. “He's a big guy, size-wise. Just a lovable-bear kind of a guy. Almost too nice.”

On the street where Nakhla has lived since 1989, a different picture emerges. One neighbor, an art director, says there's been “some real shouting matches” between him and another man on the block. Another neighbor, a preschool teaching assistant, still has “a nutcase, rambling letter, telling me how horrible my children are,” she says, which Nakhla wrote her 11 years ago. Afterward, she called the police. Another time, she watched Nakhla kick her Glad trash bag across the yard to move it to another spot. The expression on his face, she says, “was like, ‘Oh, I hate this.' Oh, my gosh. Anger, just anger.”

Then the Abu Ghraib scandal happened. “Were we surprised? Oh, no. I called my husband at work and said, ‘We are not the only ones who think this guy is a big, fat bully.'”

Nakhla applied for his job with Titan in the spring of 2003. “Fluent in Arabic from his childhood in Egypt, he was offered and accepted a one-year assignment,” according to the court filings. Once in Iraq, Nakhla was accused of various misdeeds. In the Fay-Jones report, Lieutenant General Anthony R. Jones and Fay cite a Titan employee identified as “Civilian-17” who, based on the physical description, is widely believed to be Nakhla and is accused of cutting a detainee's ear “to an extent that required stiches.”

In an October 2003 photo, Nakhla, or Abu Hamid, as he was known by detainees, is standing near three naked male prisoners shackled together, lying on the floor. Nakhla is crouched next to the prisoners. In another photo, he is putting his hand near a detainee's neck, and, in a third, sitting in a white plastic chair near three naked detainees lying on the floor. Nakhla watched as, he said, soldiers “handcuffed [detainees'] hands together and their legs with shackles and started to stack them on top of each other,” according to the well-known report on military abuse completed by Major General Antonio Taguba.

In a January 18, 2004, statement in the Taguba report, detainee Kasim Mehaddi Hilas said he saw Nakhla sexually assault an Iraqi boy. Nakhla was “fucking a kid,” said Hilas. “His age would be about 15 to 18 years. The kid was hurting very bad and they covered all the doors with sheets. Then when I heard the screaming I climbed the door because on top it wasn't covered and I saw Abu Hamid who was wearing the military uniform, putting his dick in the little kid's ass … And the female soldier was taking pictures.”

Tabuga said he found the accounts “credible based on the clarity of their statements and supporting evidence provided by other witnesses.” He names Nakhla as a suspect in detainee abuse. But so far Nakhla has not been charged with any crime.

In July 2004, a U.S. Army Criminal Investigation Command (CID) memo, released under the Freedom of Information Act, said Nakhla could be charged with aggravated sexual abuse. If he had been prosecuted, he could have been tried in a criminal court under the Military Extraterritorial Jurisdiction Act -- most likely in the Eastern District of Virginia, where his case has apparently been investigated by the U.S. Attorney's office. But the investigation seems to be at a standstill.

A May Legal Times article by Jason McLure says the allegations against Nakhla have not stood up to scrutiny by the Department of Justice, and that prosecutors haven't been able to gather reliable evidence against him. The article cites one, unnamed government lawyer. It's not clear -- at least to two other attorneys who are familiar with Justice Department procedures -- whether the evidence against Nakhla is not panning out or whether the case is just not being aggressively pursued. Nakhla, his lawyer, and a spokeswoman in the U.S. Attorney's office all refused to comment.

Meanwhile, civil claims against Nakhla were dismissed in June because he doesn't live in the District of Columbia, where the case is being heard. Burke has asked Judge Robertson to reconsider his ruling on Nakhla, but even getting the case heard will be difficult. Robertson has dismissed many of the claims against Titan and CACI, including allegations that they were involved in a racketeering scheme. He has, however, allowed some claims against the contractors, including sexual assault and battery, to remain and has agreed to let the case go forward in a limited manner.

* * *

While Nakhla and Graner were stationed at Abu Ghraib in 2003, the prospect of Americans being hauled into an Iraqi court seemed unimaginable -- because of the CPA guidelines, but also because the situation in Iraq was far less desperate. The political climate has shifted in both Iraq and the United States over the past three years. Many of the Iraqis who'd once welcomed U.S. troops and cheered the downfall of Saddam Hussein have become -- to put it mildly -- resentful of the American presence.

Other things have changed, too. The November killing of 24 people in Haditha and the rape and murder of a teenage Iraqi girl and her family members in Mahmudiya in March have enraged Iraqis. “We believe that the immunity given to members of coalition forces encouraged them to commit such crimes in cold blood,” Iraqi Prime Minister Nuri al-Maliki told journalists in July. “That makes it necessary to review it.”

The U.S. military justice system is dealing with many of the wrongdoers, and in some ways impressively. More than 250 officers and soldiers have been held accountable for mistreating detainees, says Army spokesman Major Wayne Marotto. Some, like Graner, are behind bars. Yet the legal process for contractors is deeply flawed. None of the civilian workers from Abu Ghraib have even been put on trial.

These days, Nakhla drives to work in a battered Toyota with a cross hanging from the rear-view window. On a May afternoon, he ambled through the shopping mall during a break from work and picked up a pizza. Nakhla has not had to answer questions from prosecutors about what he did -- or didn't do -- on the night shift at Abu Ghraib. As it looks now, he may never have to explain what happened. “It's certainly fair to say he hasn't been brought to justice,” says attorney Burke. “For him, it's over.”